October 12, 2017


Administrators often “coddle” and “encourage” censorship, Mr. Sessions observed. That’s nothing new. After the Civil War, white students at what is now Washington and Lee University in Virginia attacked blacks associated with the Freedmen’s Bureau. The college president, Robert E. Lee, offered pieties and looked the other way. In response to similar incidents, Congress safeguarded civil rights with legislation known as anti-Ku Klux Klan acts.

Public universities are subject to the full sweep of the anti-KKK laws, as well as more recent civil-rights statutes. At San Francisco State University, Jewish students have filed suit under Section 1983 of the federal civil-rights law, alleging disruption of their events violates the First Amendment and the Equal Protection Clause of the 14th Amendment. The First Amendment requires public universities to treat speech neutrally, regardless of the message. Administrators may not tell police to stand down in the face of a “heckler’s veto.”

In 2013 at New York’s University at Buffalo, police let counterprotesters shut down a pro-life demonstration. This June the university settled, paying the plaintiffs’ attorney fees and promising to refrain from viewpoint discrimination in the future.

But universities are responsible only for taking reasonable precautions. A target of last semester’s antispeech riots, Bret Weinstein, was mobbed and hounded out of Evergreen State College after refusing to comply with a college-sponsored “Day of Absence” in which white people were “asked” to stay off campus. While Mr. Weinstein claimed that Evergreen State violated his right of free speech, the college could have argued that it acted reasonably because violent antispeech protests were still novel and Mr. Weinstein was physically threatened in class only once. He and his wife, also an Evergreen professor, settled their claim for $500,000 and an agreement to resign. Public universities now have notice of their duty to provide security, which UC Berkeley and the University of Utah just fulfilled for conservative writer Ben Shapiro.

Private universities have no First Amendment obligation to provide a forum for speech. But many riots purport to attack white “supremacy” or “privilege,” and if private universities act with deliberate indifference to racially motivated attacks, they may be liable to students or speakers. Colleges are subject to antidiscrimination statutes such as Section 1981, an anti-KKK act that would cover student and speaker contract rights. If they accept federal funding—and all but a handful do—they are also subject to Title VI of the Civil Rights Act of 1964.

Institutions are not the only prospective defendants. Campus rioters themselves may be liable under Section 1985(3), which covers private conspiracies and targets those who, like masked Antifa attackers, go in disguise—“a common tactic also used by the detestable Ku Klux Klan,” as Mr. Sessions noted. The statute applies most clearly to racially motivated physical attacks or efforts to exclude persons. Evergreen State is a classic case: After disrupting Mr. Weinstein’s class, students detained the college president and apparently posted photos of themselves brandishing baseball bats on Facebook . Some faculty members demanded disciplinary action against Mr. Weinstein and later assembled with masked Antifa members who attacked counterprotesters.

Section 1985(3) may also apply to racially motivated “no-platforming”—group intimidation to suppress speakers.

There’s also a criminal statute, 18 USC 241, covering conspiracies to deprive people of their civil rights. And I think the financial backers and coordinators of these groups are legally vulnerable too.

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